Davis, C.J., concurring:
In this case, the majority reversed an order granting summary judgment to the appellee, Eastern Associated Coal Corp., and remanded the action to allow Mr. Skaggs to pursue his claim of discriminatory termination. (See footnote 1) I agree with this disposition. However, I have chosen to write separately because I strongly disagree with the majority's partial reliance upon the decision in State ex rel. McKenzie v. Smith, ___ W. Va. ___, ___ S.E.2d ___ (No. 29645, June 28, 2002), in resolving this appeal.
McKenzie was wrongly
decided and has no application to Mr. Skaggs' case.
(See footnote 2) The decision in McKenzie
concerned the discretionary authority of the Commissioner to allow employers
to submit a list of preferred vocational rehabilitation service providers.
Thus, McKenzie has no relevance to the instant claims involving discriminatory
termination. The issue posed by Mr. Skaggs was controlled exclusively by our
prior decisions concerning discrimination under W. Va. Code § 23-5A-1
(1978) (Repl. Vol. 1998), and this case should have been resolved on that
In view of the foregoing, I concur. I am authorized to state that Justice Maynard joins me in this concurring opinion.